Yesterday, the Ninth Circuit Court of Appeals ruled against the U.S. Citizenship and Immigration Services (“USCIS”) in a case brought by the American Immigration Council challenging certain thresholds adopted in an EB-1 Extraordinary Ability immigrant petition case (Kazarian). USCIS issued a request for evidence (“RFE”) and later denied the case. In citing the basis for denial, USCIS stated that the petitioner had not sufficiently established that the beneficiary’s publications had received acclaim from the research community. This standard is not required under the law.
The Ninth Circuit Court held that USCIS may not implement substantive or evidentiary requirements above what is established in the regulations.
The immigration community has seen an increase in requests for evidence over the past couple of years, including numerous instances in which novel and arbitrary standards have been listed in RFEs. Perhaps this decision will send a message and reduce the incidence of such burdensome RFEs. Although most cases are ultimately approved, it can create a significant hardship on petitioners/applicants and immigration practitioners to respond to requests that go beyond what is required under the law.